The climate litigation game, as seen in places as diverse as Pennsylvania and Puerto Rico, is an ideological attack that threatens America’s constitutional principles.
The climate litigation game is simple: attribute any and all damage even remotely plausible to “climate change” and then sue the fossil energy producers for purportedly causing that damage while misleading the public about those asserted impacts despite knowing about them for decades.
The claims seem straightforward, and the potential uses for the many, many billions of dollars to be extracted are endless. Alas, the game is in a slow-motion collapse, the latest manifestation of which is the decision by Bucks County, Pennsylvania, Court of Common Pleas Judge Stephen Corr to dismiss the county climate lawsuit against several energy producers. Judge Corr wrote, “… Bucks County fails to state a claim upon which relief can be granted because Pennsylvania cannot apply its own laws to claims dealing with air in its ambient or interstate aspects, and, therefore, we are compelled to dismiss this lawsuit for lack of subject matter jurisdiction.” (emphasis added) And he added, “We join many other state and federal courts in finding that claims raised by Bucks County are solely within the province of federal law.”
Climate Litigation in Puerto Rico
Only two weeks earlier, Puerto Rico voluntarily dismissed its climate lawsuit against several fossil energy producers after the issuance of a Donald Trump executive order directing the attorney general to identify all state and local actions burdening domestic energy production “that are or may be unconstitutional, preempted by Federal law, or otherwise unenforceable.” That was followed by lawsuits filed by the Department of Justice against Hawaii and Michigan, arguing that their litigation against the energy producers violates federal authority under the Clean Air Act.
The supporters of the climate litigation game were quick to argue that Puerto Rico dismissed its lawsuit because the new governor, Jenniffer González-Colón, is a Republican and an ally of Donald Trump. Oh, please. It is no exaggeration to describe the Puerto Rican electric power system as in shambles, characterized by massive costs and constant blackouts, the most recent of which afflicted the entire island in April.
Because of a decade-long history of defaulting on the repayment of electric-power system borrowings, Puerto Rico has been forced to turn to the federal government for bailouts, which, naturally, has created a political football — a demand in 2021 from seventeen members of Congress that such federal financial support be used “to promote … renewable energy sources, including photovoltaic and battery energy storage systems and rooftop and onsite solar…”
This is preposterous, as Governor González-Colón recognized immediately. Solar (and wind) power is vastly more expensive and less reliable than modern conventional generation powered by fossil fuels. But, obviously, Puerto Rico cannot invest in such an efficient system while suing the fossil energy producers.
Yet More Dismissals
Back to the collapse of the climate litigation game. The U.S. Court of Appeals for the Second Circuit held while dismissing New York City’s climate lawsuit: “Emissions in [New York or] New Jersey may contribute no more to flooding in New York than emissions in China.” And the court added, “Such a sprawling case is simply beyond the limits of state law.”
New Jersey Superior Court Judge Douglas Hurd, in his dismissal of a similar lawsuit by New Jersey, stated, “… this court finds that Plaintiffs’ complaint, even under the most indulgent reading, is entirely about addressing the injuries of global climate change and seeking damages for such alleged injuries.” Judge Hurd also stated, “This court’s decision is reliant upon and consistent with both federal and state courts across the country that have rejected the availability of state tort law in the climate change context.”
Anne Arundel County Circuit Court Judge Steven Platt, dismissing the Annapolis and Anne Arundel County climate lawsuits, found that “the … Plaintiffs here, the City of Annapolis and the County of Anne Arundel can participate in the efforts to limit emissions collaboratively, but not in the form of litigation.”
Judge Videtta Brown of the Baltimore City Circuit Court, dismissing the Baltimore climate lawsuit, found that the “plaintiff thus cannot deny that it seeks redress for harms allegedly caused by climate change — a global phenomenon caused by emissions from sources in literally every State and Nation in the world.”
Delaware Superior Court Judge Mary M. Johnston, dismissing the Delaware climate lawsuit, argued that “This Court finds that claims in this case seeking damages for injuries resulting from out-of-state or global greenhouse emissions and interstate pollution are preempted by the CAA [Clean Air Act]. Thus, these claims are beyond the limits of Delaware common law.” Other such dismissals include the San Francisco and Oakland case (here) and the unanimous dismissal by the Supreme Court in American Electric Power vs. Connecticut (here).
Climate Litigant Hypocrisy
The hypocrisy of the climate litigants is profound. Every state and local government is, and has been for many decades, a large consumer of fossil fuels. And every state and local economy is dependent upon fossil fuels.
The response of many of the climate litigants is that the fossil energy producers have known all along that they were creating a climate crisis but hid that information from us. Seriously? Let us summarize what the Intergovernmental Panel on Climate Change in its 1990 First Assessment Report (page 202) made clear: It could not explain why temperatures were higher 5,000-6,000 years ago despite no evidence of an increase in greenhouse gas (GHG) concentrations.
Fast forward to the most recent Sixth Assessment Report (2021-2022). The IPCC still cannot narrow down the “likely” range (p. 46) of climate effects of increased GHG concentrations and is able to predict (Table 12.12) various adverse future effects only with low confidence and only under an extreme emissions scenario. Did the fossil energy industry “know” things decades ago that were not known then and are not known today? Obviously not.
Note that U.S. output of crude oil and natural gas are, respectively, 21.5 percent and 21.2 percent of the global totals. U.S. GHG emissions from all combustion of fossil fuels are less than nine percent of global GHG emissions. Accordingly, the argument that U.S. producers of oil and natural gas are “responsible” for the effects of anthropogenic climate change is preposterous. An elimination of all U.S. fossil fuel combustion emissions would reduce global temperatures in 2100 by 0.077°C if we apply the Environmental Protection Agency climate model under realistic assumptions. Because the standard deviation of the surface temperature record is 0.11°C, that effect would not be detectable.
Conclusion
The climate litigation game is perverse because it is fundamentally inconsistent with the evidence on climate phenomena, and because it represents an attack on our democratic institutions as it attempts to attain through litigation what it cannot achieve in Congress. Even more fundamentally, it represents an assault on the Constitution, which creates a governing framework that protects unpopular individuals, groups, and businesses from the whims and passions of ideological attacks. The climate litigation game thus represents a real “pollution” of our constitutional principles. It can surprise no one that it is collapsing.
About the Author: Benjamin Zycher
Dr. Benjamin Zycher is a senior fellow at the American Enterprise Institute, where he works on energy and environmental policy. He is a former senior economist at the RAND Corporation, a former adjunct professor of economics at the University of California, Los Angeles (UCLA) and at the California State University Channel Islands, and is a former senior economist at the Jet Propulsion Laboratory, California Institute of Technology. He served as a senior staff economist for the President’s Council of Economic Advisers, with responsibility for energy and environmental policy issues. Dr. Zycher has a doctorate in economics from UCLA, a Master in Public Policy from the University of California, Berkeley, and a Bachelor of Arts in political science from UCLA.
Image: Shutterstock.com/Vitalii Vodolazskyi
